Yorktown police officers and canine handlers Jason Swart and Justin Foley have filed a lawsuit against the town of Yorktown. They are seeking to recover overtime pay they say they're owed for caring for their police dogs over the last three years.
The officers filed the lawsuit with the United States Southwestern District Court of New York on Jan. 4 and the town of Yorktown received the action on Jan. 11.
Swart and Foley claim they are entitled to time and a half for the time they spent taking care of their dogs on a daily basis.
The lawsuit (attached to this article) claims that under the Fair Labor Standards Act of 1938, they were entitled to overtime compensation for all hours worked in excess of 40 hours per week.
"The excess unpaid overtime hours due to [Swart and Foley] as Canine Officers include compensable time spent caring for, exercising, training, maintaining, and inter alia cleaning up after their police dogs in said time period," their attorney Jonathan Lovett wrote in the lawsuit.
He also cited the Section 207(a)(1) of the Act:
"...[N]o employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed."
Lovett said the town paid an annual compensation of $1,000 to each officer instead of paying Swart and Foley time and a half. He said the most common violation of the act occurs with K9 handlers who are given a stipend instead of what the officers are entitled to by law for any aspect of dealing with their dogs.
The employment and work records for the police officers are in "the exclusive
possession, custody and/or control of the town, according to the lawsuit, and the officers are unable to state the exact amounts they are seeking.
However, Lovett told Patch he doubts the town has kept any records and added that the officers are allowed by the court to estimate how many hours they worked with their dogs over the last three years.
Town Attorney Jeannette Koster was out of the office and could not be reached in time for publication. Yorktown Supervisor Michael Grace did not return a call asking for a comment in time for publication.
Lovett said he has documentation proving town officials were aware of the Fair Labor of Standards Act and there was a "back and forth" dialogue about it, but that he said the town did not comply with the law.
Swart's police dog Caesar died in May 2012 after he suffered from a kidney failure. In addition, about a year prior to his death, Caesar was diagnosed with inflammatory bowel disease – incurable, but controllable with medications.
"The town refused to cover any medical bills," Lovett said. "The premise that you can wash your hands when the dog becomes sick is a bit repulsive."
When asked why Swart and Foley had decided to file the lawsuit now, Lovett said he could not discuss what conversations with his clients, but he said the men were exercising their rights.
According to a Yorktown Police Benevolent Association contract which was effective until May 2012 when a new one was approved, members of the canine untit received a $700 annual payment. Details of the new contract and the annual stiped were not immediately available.
Article 3, section Compensation of that contract states: "Members of the canine unit shall receive a $700 annual payment in a separate check for caring and maintaining their dogs during their off duty time. Such payment shall be made at the time of the second holiday pay payment is made to officers in the town and shall be prorated for those members who serve less than one year as canine handlers."
Susan Siegel, Yorktown resident and former town supervisor until 2011, said the town did keep records of overtime work. During her two years in office, she said, the officers submitted biweekly time-sheets that showed their hours, including overtime hours.
"How are they saying now they didn't get paid overtime?" she said after learning of the lawsuit. "If a worker did some overtime, they would typically put it on that time-sheet and they would get paid for it when the next check was cut."
The town must respond to the summons within 20 days of receiving the notice.